The New Frontier – Family Formation Options for Single Parents and Same-Sex Couples in Virginia – Assisted Reproductive Technology, Adoption and Other Legal Options

Family formation for singles and same-sex couples in Virginia is not always as easy as it is in many other states. However, there are a variety of options available, especially with advances in medical technology. Hopefully, with changes in the law, challenges to the law, and creative approaches, these options will continue to evolve and provide more legal security in family formation for single and same-sex families.

A. Assisted Reproductive Technology Options for Single Parents in Virginia.

(1) Single Intended Mother Uses Donor Sperm.

The simplest assisted reproductive technology method for a single parent in Virginia is when the intended mother obtains donor sperm (known or anonymous) and is artificially inseminated and carries her own child. Whether the sperm donor is known or anonymous, all that is required as far as parental rights are concerned is a very sound and comprehensive sperm donor agreement. Because many fertility clinics do not have adequate sperm donor agreements, nor any agreement at all between the donor and the recipient, it is very important for the single intended mom to protect herself by ensuring such an agreement is executed (that is, a sperm donor agreement directly between her and the donor – not just an agreement with the clinic). Important issues should be addressed such as the provision of future medical information, donor identity disclosure, donor registry, and future donor contact. Even if the donor is anonymous, it is relatively easy to have such an agreement put in place.

At birth, the intended mother is listed on the birth certificate and she lists the father as unknown.

(2) Single Parent Adoption.

Single Parent adoption is well established in Virginia law and is an option for a single male or female. Unless the adoption is of a close relative that has been in the adoptive parent’s home for at least three years, the adoptive parent will need to have a home study done. The adoptive parent can adopt within Virginia or can adopt a child from another state. Typically the adoption is either an agency adoption or a parental (private) adoption. While single parents can adopt from foreign countries, there are a limited number of countries that will permit a single parent (as opposed to a married heterosexual couple) to adopt. Single parents also can adopt children out of foster care. All of the intricacies and legal processes of a single parent adoption are beyond the scope of this article.

(3) Single Intended Mother Contributes Her Own Eggs and Uses a Gestational Carrier.

Virginia’s surrogacy statute, Virginia Code section 20-156, et. seq., Status of Children of Assisted Conception, only applies to married intended parents (defined by Virginia’s Constitution as a man and a woman; Virginia Constitution: Article I, §15A) using a gestational carrier. However, because there is no statutory or case law prohibition on a single intended parent using a gestational carrier or surrogate, single parents can still utilize a gestational carrier in Virginia.

In such an event, the intended mother and the gestational carrier enter into a gestational carrier agreement. Notably, the enforceability of such an agreement in Virginia is not clear. Also a comprehensive sperm donor agreement should be executed as discussed above in Part A(1). DNA testing must be conducted after the birth to confirm that the intended mother is the genetic mother. Then, by utilizing Virginia’s Parentage Act, found at Virginia Code section 20-49, et. seq., an Order of Parentage can be obtained after the birth. Such an order finds that the intended mother is the legal and genetic mother and orders that her name be placed on the birth certificate.

Provided that an acceptable, comprehensive sperm donor agreement was executed (this is a very important and a necessary document to the parentage proceedings), the sperm donor will have no parental rights and, after the Order of Parentage is entered, the birth certificate will list only the single intended mother as the parent. Of course this is an evolving area of the law and further is dependent on the particular court. However, this author successfully has obtained several of such parentage orders to date and there is no reason for the court to refuse to enter the order provided all parties are in agreement.

(4) Single Intended Mother Does Not Use Her Own Eggs (is Not Genetically Related) and Uses a True Surrogate or a Gestational Carrier Who Carries Donor Eggs.

If the intended mother’s egg is not used – but, instead the carrier contributes her own egg (defined as a “true surrogate”) with donor sperm or carries donor egg combined with donor sperm (or a donated embryo), and the child is born in Virginia, then a single parent adoption must be performed after the birth as set out in section (2) above. If donor egg and/or donor sperm is used, again, as previously stated, separate comprehensive donor agreements must be entered into between the donor and the recipient. These documents oftentimes must be incorporated into subsequent court proceedings.

Prior to the insemination or embryo transfer, the intended mother enters into a surrogate or gestational carrier agreement with the surrogate/carrier. Again, as previously noted, the enforceability of such an agreement in Virginia is unclear. Moreover, because the intended mother is not genetically related to the child, these situations are very risky as the intended mother may have limited recourse should the surrogate or carrier breach the contract and decide to keep the child. So long as the surrogate or carrier is committed to the process, a single parent adoption needs to take place after the birth.

(5) Single Intended Father Uses His Own Sperm With Donor Egg and a Gestational Carrier.

Situations involving a single intended father using a gestational carrier with donor egg and his own sperm where the child is born in Virginia are possible but also risky. Again, a gestational carrier agreement is executed (the enforceability of which, as previously noted, is unclear given that Virginia’s statute on “Status of Children of Assisted Conception” only recognizes “intended parents” defined as a husband and wife in a carrier or surrogate arrangement).

At birth, if the intended father’s sperm is used, and the gestational carrier is unmarried, then the gestational carrier easily can place the intended father’s name on the birth certificate. If the carrier is married, she may choose to list the father as unknown or may try to name the intended father who also must sign an acknowledgement of paternity at the hospital. However, hospital policies vary on their interpretation of whether a married mother can list someone other than her husband on the birth certificate application. If the intended father is not permitted to be listed, then DNA testing can be done to establish that the intended father is the genetic father and the carrier’s husband is not the genetic father. Then Virginia’s parentage act can be utilized to obtain an Order of Parentage establishing that the intended father is the legal and genetic father. However, even though one of the foregoing routes can be used to get the genetic intended father on the birth certificate in Virginia, the problem is then getting the gestational carrier off the birth certificate and otherwise ensuring that any parental rights or responsibilities she has for the child are extinguished. If donor egg is used, in theory it should be legally possible to utilize DNA testing to establish that the carrier is not the genetic parent and use Virginia’s Parentage Act to get an Order of Non-Parentage entered. Technically, the failure of the court to do so violates the Equal Protection Clauses of both the Commonwealth of Virginia Constitution (Va. Const. art. I, § 1) and the U.S. Constitution (U.S. Const. amend. XIV, § 1) since a man can get relief via DNA testing in conjunction with Virginia’s Parentage Act to get off the birth certificate and relieve himself of parental responsibility. Arguably a woman should be able to do so as well. However, whether a court in Virginia will enter an Order of Non-Parentage as well as the removal of the carrier’s name from the birth certificate remains to be determined. The first court this author tried this process with refused to enter the Order of Non-Parentage. In that case the clients did not want to pursue the matter further as they were a same-sex male couple who could do a second parent adoption in Washington D.C. to remove the carrier from the birth certificate and place the second father on it instead. At the time of this writing (July 2012), this author is not aware that such an Order of Non-Parentage successfully has been accomplished yet with any courts in Virginia.

Accordingly, the only safe route at this time in Virginia is for the carrier to not name the intended father on the birth certificate (even if he is the genetic dad) and, instead, do a single parent adoption. It may sound strange for a genetic father to have to adopt his own child but it appears to be the only reliable and established legal route at this time in Virginia to ensure that the carrier has no parental rights or responsibilities and that the intended father is established as the sole legal parent.

(6) Single Intended Father Uses a True Surrogate (Who Contributes Her Own Egg) with His Own Sperm or Donor Sperm.

It is possible in Virginia for a single intended father to use a true surrogate (meaning that she is artificially inseminated with the intended father’s sperm or donor sperm). Again, if donor sperm is used, then a comprehensive sperm donor agreement should be obtained. Prior to artificial insemination, the intended father and the surrogate would enter into a surrogacy agreement (again the enforceability of which is unclear). If the child is born in Virginia, the only established legal route after birth that vests parental rights solely in the father, extinguishes the parental rights of the surrogate, and places the intended father’s name on the birth certificate, is to do a single parent adoption. This is a very risky option because if the surrogate changes her mind and refuses to transfer custody of the child to the intended father, then even where the intended father was the genetic father, at best he would have a custody case and would end up with some sort of custody and/or visitation arrangement with the surrogate as well as in all likelihood a child support obligation. If he was not the genetic father (which would be the case if he used donor sperm), then in all likelihood (depending on the court), he would have no rights to the child whatsoever.

(7) Intended Parent or Carrier Live in Another State or Child is Born in a State Other Than Virginia.

If either the single intended parent or the carrier resides in another state – then other options offered by the other state should be considered and, if possible, utilized to accomplish the objectives of the parties. Moreover, whether the child can be born in another state that has more advantageous laws also should be evaluated.

(1) Same-Sex Male Couples Using a Carrier in Virginia.

Surrogacy or gestational carrier arrangements in Virginia involving same-sex male couples are very tricky and risky. Cleary this is a new and evolving area of the law. While the surrogacy statute (Children of Assisted Conception) in Virginia only applies to married intended parents (as in a man and woman), there is no case law or statute that this author is aware of in Virginia that prohibits a single man and a gestational carrier from entering into a gestational carrier agreement. This means that, for same-sex male couples, one of them or each of them separately can contract with the carrier as a single parent because there is no known case law on point. The enforceability of such a contract is unclear.

At birth, if the intended father’s sperm is used, then his name can be placed on the birth certificate if the carrier is unmarried. If the carrier is married, then an Order of Parentage could be obtained after DNA testing establishes that the intended father is the genetic father and that the carrier’s husband is not the genetic father. However, the problem then is getting the carrier off the birth certificate and the other partner on the birth certificate. At present, if the same-sex couple lives in Virginia, as previously discussed (see part A(4)) the only established way to get the carrier off the birth certificate is via a single parent adoption, or the other route, if donor egg is used, is to have DNA testing done on the baby and carrier and attempt to have an Order of Non-Parentage entered (see prior discussion at Part A (5)). After the single parent adoption takes place, at present in Virginia, it is not currently possible to get the other partner on the birth certificate unless a court was willing to do two single parent adoptions at the same time (while there does not appear to be a direct prohibition on such under the current adoption parental placement statutory provisions, this author is not aware of this having been accomplished yet in Virginia).

Another legal process in theory would be for the non-genetic father to adopt the child and then to use the Parentage Act to get the genetic father on the birth certificate. However, again this is untested legal territory and not known to have been accomplished yet in Virginia.

So what are the established legal options in Virginia with regard to the second parent? The best option is for the same-sex couple to live in another state (or the District of Columbia) that permits second parent adoptions. However, if that is not possible and the same-sex couple lives in Virginia and the child is born here, then the best legal route is that one intended father adopts the child (see part A(5) above) and then the same-sex couple obtains a Joint Custody Order to give the other dad custodial rights. While a Joint Custody Order for same-sex couples is not an absolute, this author has successfully had at least a dozen of such orders entered to date (as of July 2012). The couple should have reciprocal wills drafted naming the other as the child’s trustee and guardian. Reciprocal durable powers of attorney and advanced medical directives also should be executed.

If the same-sex couple subsequently moves to another state that permits second parent adoptions, they then can do a second parent adoption and get the other partner on the birth certificate and the carrier off of the birth certificate (note that the Virginia Supreme Court opined in Davenport v. Little-Bowser, 269 Va. 546, 611 S.E.2d 366 (2005) that adoption orders for same-sex couples from other states must be acknowledged by the Virginia Department of Vital Records).

If the same-sex male couple already lives in a state or jurisdiction that permits second parent adoption, like Maryland or Washington, D.C., but the carrier is in Virginia, then after the genetic dad is listed on the birth certificate (or, if the carrier is married and an Order of Parentage is entered in Virginia as to the genetic dad) then the couple can do a second-parent adoption in their home state. Ideally, the second parent adoption will remove the carrier from the birth certificate, extinguish any of her parental rights or responsibilities, place the other partner on the birth certificate, and give the adoptive partner parental rights and responsibilities that are equal to those of the genetic dad.

(2) Same-Sex Female Couple Where One of the Females Carries the Child and Uses Her Own Egg and Donor Sperm.

Where one half of the couple uses her own egg and donor sperm and delivers the child in Virginia, provided that a proper comprehensive sperm donor agreement has been executed, she will be the sole genetic and legal parent of the child. The best family formation route then is: the same-sex couple should have a Joint Custody Order entered (as discussed above in Part B (1)) along with reciprocal wills drafted naming the other as the child’s trustee and guardian. Reciprocal durable powers of attorney and advanced medical directives also should be executed. If the same-sex couple subsequently moves to another state that permits second parent adoption, then as discussed above in Part B (1), they can do a second parent adoption and get the other partner on the birth certificate.

A better option, if at all possible, is for the couple to give birth in Washington, D.C., and take advantage of the District of Columbia’s parentage laws under District of Columbia Official Code § 16-909(e). The non-carrying partner can sign a form (along with the partner) stating that she consented to her partner’s artificial insemination. Via this route, the non-carrying partner can be placed on the birth certificate. However, since no court order is involved, the couple should still follow the above noted same-sex protocol in Virginia to obtain a Joint Custody Order and execute reciprocal wills, durable powers of attorney, and advanced medical directives.

(3) Same Sex Female Couple where one Female “Donates” Her Egg to the Other to Carry.

Where one half of the couple contributes her egg to the other partner to carry with donor sperm, the legal outcome in Virginia as to the genetic mother currently is unknown. The partner who carries the child (the “gestational mother”) will be the presumed and legal mother and, even though DNA testing may show that the partner who contributed the egg is the genetic mother, it is untested in Virginia (as far as this author is aware) as to whether a court would enter a Parentage Order ordering that she is a second legal parent who should be listed on the birth certificate as a second parent. In legal theory, this should be possible. However, whether a court would enter such an order remains to be seen. Moreover, whether a court has the authority to then order the Virginia Department of Vital Records to place the second mom on the birth certificate is not established.

The genetic mother needs to be very clear in any agreements with the fertility clinic that she does not intend to be a donor (which arguably would preclude her from having any parental rights) but that she intends via her contribution to be a parent. Most fertility clinic documents need to be revised for these situations.

In addition, as between the partners, the gestational and genetic moms should enter into a Parenting and Non-Donor Agreement so that the intent to jointly and equally parent is abundantly clear. Of course, this is truly an untested area of the law in Virginia with no guarantee that the agreement would be upheld as enforceable by a court in Virginia. Nonetheless, the intent of the parties should be formalized.

If a Parentage Order cannot be obtained listing both the genetic mom and the gestational mom as the legal parents, the couple should still have a Joint Custody Order entered (although it would not give the partner who contributed her egg standing as a legal parent but only standing as a joint custodian). Again, the same-sex couple should have reciprocal wills drafted naming the other as the child’s trustee and guardian. Reciprocal durable powers of attorney and advanced medical directives also should be executed. If the same-sex couple subsequently moves to another state that permits second parent adoptions, then they can do a second parent adoption and ensure that the non-carrying partner is made a parent via court order.

If at all possible, a same-sex female couple will be at a great advantage if they can arrange to deliver the child in Washington D.C. and take advantage of the District of Columbia’s Parentage Act. In such event, as long as the partner signs a form that she consented to the insemination by the pregnant partner, then both can be placed on the birth certificate. Note that this is not the same as a court order giving both parents equal rights; however, it is better than giving birth in Virginia where only the carrying mom, with any certainty, gets placed on the birth certificate.

(4) Same-Sex Female Couple Who Use a Surrogate or Gestational Carrier.

Because usually one of the two same-sex female partners is capable of carrying a child, it is a very rare situation whereby they would need to use a third party carrier. However, such situations sometimes do arise. In such event, if one of the partners is donating her egg, then the situation should be treated the same as where a single woman uses a gestational carrier as discussed above in Part A(3). In such event an Order of Parentage can then be obtained to put the genetic parent on the birth certificate and take the gestational carrier off the birth certificate. Then, as previously discussed, the same-sex couple should seek to obtain a Joint Custody Order, have reciprocal wills drafted (that address guardianship of the child and establish a trust for the child), and have reciprocal durable powers of attorney and advanced medical directives executed. If the same-sex couple subsequently moves to another state that permits second parent adoption or that recognizes both genetic and gestational same-sex parents, then they can do a second parent adoption and get the genetic partner on the birth certificate (note that the Virginia Supreme Court held in Davenport v. Little-Bowser, 269 Va. 546, 611 S.E.2d 366 (2005) that adoption orders for same-sex couples from other states must be honored by the Virginia Department of Vital Records).

If a third party carrier is used who contributes her own egg (a “true surrogate”) using donor sperm or carries with donor egg and donor sperm (or a donated embryo), then a single parent adoption will have to take place. As discussed previously in Part (A)(4) for single intended moms, this is a very risky arrangement. After the adoption, then the same same-sex protocol outlined above (joint custody order, reciprocal wills, etc.) should be followed.

C. Adoption Options for Same-Sex Couples in Virginia

Because adoption in Virginia by statute must be by a married couple (defined in the Virginia Constitution as between a man and a woman) or by a single person, it currently is not established in Virginia that same-sex partners could both adopt the same child. However, other states have recognized second parent adoptions where one single parent adopts and then the second single parent adopts the same child. Theoretically it should be possible for either both single parents to adopt simultaneously the same child or, as in other states, for one single parent to adopt and then the other single parent to do a second parent adoption as to the same child. However, this author is not aware of either approach having been accomplished yet in a Virginia court.

It is possible, depending on the current state of Virginia ICPC (Interstate Compact on the Placement of Children) office approval, for same-sex couples to adopt together in another state that recognizes same-sex placements and return to Virginia with the child. However, if this option is pursued, it is important to be in constant consultation with a Virginia adoption attorney that is abreast of the most recent Virginia ICPC office policy to ensure that there will be no hitches in getting interstate approval to bring the child home from the other state. Moreover, separate home studies may need to be done on each partner.

Moreover, it is usually possible for same-sex couples in other states to adopt a child from Virginia provided that same-sex adoptions are permissible in their home state. Again, an experienced adoption attorney in Virginia should be consulted to ensure that there will not be any hitches with obtaining Virginia ICPC (interstate) approval.

It is feasible and common for one partner to adopt as a single adoptive parent in Virginia (see part A(2)). For purposes of home study approval, typically one partner of the same-sex couple will be the one to adopt the child, with the other partner listed as a “roommate.” However, some agencies have been more forthcoming in their home studies of the exact nature of the relationship between the parties, and more judges have been accepting of such open disclosure.

If the couple resides in Virginia, the best option for the non-adopting partner then is to obtain a Joint Custody Order. Unfortunately, as previously discussed, such an order will not make the non-adopting partner a legal parent but at least will give that parent joint custodian rights. The couple should have reciprocal wills drafted with guardianship of the child designated to the other parent and with a trust set up for the child. Reciprocal durable powers of attorney and advanced medical directives also should be executed. If the same-sex couple subsequently moves to another state that permits second parent adoptions, then they can do a second parent adoption and get the genetic partner on the birth certificate (note that the Virginia Supreme Court held in Davenport v. Little-Bowser, 269 Va. 546, 611 S.E.2d 366 (2005) that adoption orders for same-sex couples from other states must be honored by the Virginia Department of Vital Records).

All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law. For permission requests, write to the author, Colleen Marea Quinn at Locke & Quinn, P.O. Box 11708, Richmond, VA 23230 or email quinn@lockequinn.com.

The New Frontier – Family Formation Options for Single Parents and Same-Sex Couples in Virginia – Assisted Reproductive Technology, Adoption and Other Legal Options

Family formation for singles and same-sex couples in Virginia is not always as easy as it is in many other states. However, there are a variety of options available, especially with advances in medical technology. Hopefully, with changes in the law, challenges to the law, and creative approaches, these options will continue to evolve and provide more legal security in family formation for single and same-sex families.

A. Assisted Reproductive Technology Options for Single Parents in Virginia.

(1) Single Intended Mother Uses Donor Sperm.

The simplest assisted reproductive technology method for a single parent in Virginia is when the intended mother obtains donor sperm (known or anonymous) and is artificially inseminated and carries her own child. Whether the sperm donor is known or anonymous, all that is required as far as parental rights are concerned is a very sound and comprehensive sperm donor agreement. Because many fertility clinics do not have adequate sperm donor agreements, nor any agreement at all between the donor and the recipient, it is very important for the single intended mom to protect herself by ensuring such an agreement is executed (that is, a sperm donor agreement directly between her and the donor – not just an agreement with the clinic). Important issues should be addressed such as the provision of future medical information, donor identity disclosure, donor registry, and future donor contact. Even if the donor is anonymous, it is relatively easy to have such an agreement put in place.

At birth, the intended mother is listed on the birth certificate and she lists the father as unknown.

(2) Single Parent Adoption.

Single Parent adoption is well established in Virginia law and is an option for a single male or female. Unless the adoption is of a close relative that has been in the adoptive parent’s home for at least three years, the adoptive parent will need to have a home study done. The adoptive parent can adopt within Virginia or can adopt a child from another state. Typically the adoption is either an agency adoption or a parental (private) adoption. While single parents can adopt from foreign countries, there are a limited number of countries that will permit a single parent (as opposed to a married heterosexual couple) to adopt. Single parents also can adopt children out of foster care. All of the intricacies and legal processes of a single parent adoption are beyond the scope of this article.

(3) Single Intended Mother Contributes Her Own Eggs and Uses a Gestational Carrier.

Virginia’s surrogacy statute, Virginia Code section 20-156, et. seq., Status of Children of Assisted Conception, only applies to married intended parents (defined by Virginia’s Constitution as a man and a woman; Virginia Constitution: Article I, §15A) using a gestational carrier. However, because there is no statutory or case law prohibition on a single intended parent using a gestational carrier or surrogate, single parents can still utilize a gestational carrier in Virginia.

In such an event, the intended mother and the gestational carrier enter into a gestational carrier agreement. Notably, the enforceability of such an agreement in Virginia is not clear. Also a comprehensive sperm donor agreement should be executed as discussed above in Part A(1). DNA testing must be conducted after the birth to confirm that the intended mother is the genetic mother. Then, by utilizing Virginia’s Parentage Act, found at Virginia Code section 20-49, et. seq., an Order of Parentage can be obtained after the birth. Such an order finds that the intended mother is the legal and genetic mother and orders that her name be placed on the birth certificate.

Provided that an acceptable, comprehensive sperm donor agreement was executed (this is a very important and a necessary document to the parentage proceedings), the sperm donor will have no parental rights and, after the Order of Parentage is entered, the birth certificate will list only the single intended mother as the parent. Of course this is an evolving area of the law and further is dependent on the particular court. However, this author successfully has obtained several of such parentage orders to date and there is no reason for the court to refuse to enter the order provided all parties are in agreement.

(4) Single Intended Mother Does Not Use Her Own Eggs (is Not Genetically Related) and Uses a True Surrogate or a Gestational Carrier Who Carries Donor Eggs.

If the intended mother’s egg is not used – but, instead the carrier contributes her own egg (defined as a “true surrogate”) with donor sperm or carries donor egg combined with donor sperm (or a donated embryo), and the child is born in Virginia, then a single parent adoption must be performed after the birth as set out in section (2) above. If donor egg and/or donor sperm is used, again, as previously stated, separate comprehensive donor agreements must be entered into between the donor and the recipient. These documents oftentimes must be incorporated into subsequent court proceedings.

Prior to the insemination or embryo transfer, the intended mother enters into a surrogate or gestational carrier agreement with the surrogate/carrier. Again, as previously noted, the enforceability of such an agreement in Virginia is unclear. Moreover, because the intended mother is not genetically related to the child, these situations are very risky as the intended mother may have limited recourse should the surrogate or carrier breach the contract and decide to keep the child. So long as the surrogate or carrier is committed to the process, a single parent adoption needs to take place after the birth.

(5) Single Intended Father Uses His Own Sperm With Donor Egg and a Gestational Carrier.

Situations involving a single intended father using a gestational carrier with donor egg and his own sperm where the child is born in Virginia are possible but also risky. Again, a gestational carrier agreement is executed (the enforceability of which, as previously noted, is unclear given that Virginia’s statute on “Status of Children of Assisted Conception” only recognizes “intended parents” defined as a husband and wife in a carrier or surrogate arrangement).

At birth, if the intended father’s sperm is used, and the gestational carrier is unmarried, then the gestational carrier easily can place the intended father’s name on the birth certificate. If the carrier is married, she may choose to list the father as unknown or may try to name the intended father who also must sign an acknowledgement of paternity at the hospital. However, hospital policies vary on their interpretation of whether a married mother can list someone other than her husband on the birth certificate application. If the intended father is not permitted to be listed, then DNA testing can be done to establish that the intended father is the genetic father and the carrier’s husband is not the genetic father. Then Virginia’s parentage act can be utilized to obtain an Order of Parentage establishing that the intended father is the legal and genetic father. However, even though one of the foregoing routes can be used to get the genetic intended father on the birth certificate in Virginia, the problem is then getting the gestational carrier off the birth certificate and otherwise ensuring that any parental rights or responsibilities she has for the child are extinguished. If donor egg is used, in theory it should be legally possible to utilize DNA testing to establish that the carrier is not the genetic parent and use Virginia’s Parentage Act to get an Order of Non-Parentage entered. Technically, the failure of the court to do so violates the Equal Protection Clauses of both the Commonwealth of Virginia Constitution (Va. Const. art. I, § 1) and the U.S. Constitution (U.S. Const. amend. XIV, § 1) since a man can get relief via DNA testing in conjunction with Virginia’s Parentage Act to get off the birth certificate and relieve himself of parental responsibility. Arguably a woman should be able to do so as well. However, whether a court in Virginia will enter an Order of Non-Parentage as well as the removal of the carrier’s name from the birth certificate remains to be determined. The first court this author tried this process with refused to enter the Order of Non-Parentage. In that case the clients did not want to pursue the matter further as they were a same-sex male couple who could do a second parent adoption in Washington D.C. to remove the carrier from the birth certificate and place the second father on it instead. At the time of this writing (July 2012), this author is not aware that such an Order of Non-Parentage successfully has been accomplished yet with any courts in Virginia.

Accordingly, the only safe route at this time in Virginia is for the carrier to not name the intended father on the birth certificate (even if he is the genetic dad) and, instead, do a single parent adoption. It may sound strange for a genetic father to have to adopt his own child but it appears to be the only reliable and established legal route at this time in Virginia to ensure that the carrier has no parental rights or responsibilities and that the intended father is established as the sole legal parent.

(6) Single Intended Father Uses a True Surrogate (Who Contributes Her Own Egg) with His Own Sperm or Donor Sperm.

It is possible in Virginia for a single intended father to use a true surrogate (meaning that she is artificially inseminated with the intended father’s sperm or donor sperm). Again, if donor sperm is used, then a comprehensive sperm donor agreement should be obtained. Prior to artificial insemination, the intended father and the surrogate would enter into a surrogacy agreement (again the enforceability of which is unclear). If the child is born in Virginia, the only established legal route after birth that vests parental rights solely in the father, extinguishes the parental rights of the surrogate, and places the intended father’s name on the birth certificate, is to do a single parent adoption. This is a very risky option because if the surrogate changes her mind and refuses to transfer custody of the child to the intended father, then even where the intended father was the genetic father, at best he would have a custody case and would end up with some sort of custody and/or visitation arrangement with the surrogate as well as in all likelihood a child support obligation. If he was not the genetic father (which would be the case if he used donor sperm), then in all likelihood (depending on the court), he would have no rights to the child whatsoever.

(7) Intended Parent or Carrier Live in Another State or Child is Born in a State Other Than Virginia.

If either the single intended parent or the carrier resides in another state – then other options offered by the other state should be considered and, if possible, utilized to accomplish the objectives of the parties. Moreover, whether the child can be born in another state that has more advantageous laws also should be evaluated.

(1) Same-Sex Male Couples Using a Carrier in Virginia.

Surrogacy or gestational carrier arrangements in Virginia involving same-sex male couples are very tricky and risky. Cleary this is a new and evolving area of the law. While the surrogacy statute (Children of Assisted Conception) in Virginia only applies to married intended parents (as in a man and woman), there is no case law or statute that this author is aware of in Virginia that prohibits a single man and a gestational carrier from entering into a gestational carrier agreement. This means that, for same-sex male couples, one of them or each of them separately can contract with the carrier as a single parent because there is no known case law on point. The enforceability of such a contract is unclear.

At birth, if the intended father’s sperm is used, then his name can be placed on the birth certificate if the carrier is unmarried. If the carrier is married, then an Order of Parentage could be obtained after DNA testing establishes that the intended father is the genetic father and that the carrier’s husband is not the genetic father. However, the problem then is getting the carrier off the birth certificate and the other partner on the birth certificate. At present, if the same-sex couple lives in Virginia, as previously discussed (see part A(4)) the only established way to get the carrier off the birth certificate is via a single parent adoption, or the other route, if donor egg is used, is to have DNA testing done on the baby and carrier and attempt to have an Order of Non-Parentage entered (see prior discussion at Part A (5)). After the single parent adoption takes place, at present in Virginia, it is not currently possible to get the other partner on the birth certificate unless a court was willing to do two single parent adoptions at the same time (while there does not appear to be a direct prohibition on such under the current adoption parental placement statutory provisions, this author is not aware of this having been accomplished yet in Virginia).

Another legal process in theory would be for the non-genetic father to adopt the child and then to use the Parentage Act to get the genetic father on the birth certificate. However, again this is untested legal territory and not known to have been accomplished yet in Virginia.

So what are the established legal options in Virginia with regard to the second parent? The best option is for the same-sex couple to live in another state (or the District of Columbia) that permits second parent adoptions. However, if that is not possible and the same-sex couple lives in Virginia and the child is born here, then the best legal route is that one intended father adopts the child (see part A(5) above) and then the same-sex couple obtains a Joint Custody Order to give the other dad custodial rights. While a Joint Custody Order for same-sex couples is not an absolute, this author has successfully had at least a dozen of such orders entered to date (as of July 2012). The couple should have reciprocal wills drafted naming the other as the child’s trustee and guardian. Reciprocal durable powers of attorney and advanced medical directives also should be executed.

If the same-sex couple subsequently moves to another state that permits second parent adoptions, they then can do a second parent adoption and get the other partner on the birth certificate and the carrier off of the birth certificate (note that the Virginia Supreme Court opined in Davenport v. Little-Bowser, 269 Va. 546, 611 S.E.2d 366 (2005) that adoption orders for same-sex couples from other states must be acknowledged by the Virginia Department of Vital Records).

If the same-sex male couple already lives in a state or jurisdiction that permits second parent adoption, like Maryland or Washington, D.C., but the carrier is in Virginia, then after the genetic dad is listed on the birth certificate (or, if the carrier is married and an Order of Parentage is entered in Virginia as to the genetic dad) then the couple can do a second-parent adoption in their home state. Ideally, the second parent adoption will remove the carrier from the birth certificate, extinguish any of her parental rights or responsibilities, place the other partner on the birth certificate, and give the adoptive partner parental rights and responsibilities that are equal to those of the genetic dad.

(2) Same-Sex Female Couple Where One of the Females Carries the Child and Uses Her Own Egg and Donor Sperm.

Where one half of the couple uses her own egg and donor sperm and delivers the child in Virginia, provided that a proper comprehensive sperm donor agreement has been executed, she will be the sole genetic and legal parent of the child. The best family formation route then is: the same-sex couple should have a Joint Custody Order entered (as discussed above in Part B (1)) along with reciprocal wills drafted naming the other as the child’s trustee and guardian. Reciprocal durable powers of attorney and advanced medical directives also should be executed. If the same-sex couple subsequently moves to another state that permits second parent adoption, then as discussed above in Part B (1), they can do a second parent adoption and get the other partner on the birth certificate.

A better option, if at all possible, is for the couple to give birth in Washington, D.C., and take advantage of the District of Columbia’s parentage laws under District of Columbia Official Code § 16-909(e). The non-carrying partner can sign a form (along with the partner) stating that she consented to her partner’s artificial insemination. Via this route, the non-carrying partner can be placed on the birth certificate. However, since no court order is involved, the couple should still follow the above noted same-sex protocol in Virginia to obtain a Joint Custody Order and execute reciprocal wills, durable powers of attorney, and advanced medical directives.

(3) Same Sex Female Couple where one Female “Donates” Her Egg to the Other to Carry.

Where one half of the couple contributes her egg to the other partner to carry with donor sperm, the legal outcome in Virginia as to the genetic mother currently is unknown. The partner who carries the child (the “gestational mother”) will be the presumed and legal mother and, even though DNA testing may show that the partner who contributed the egg is the genetic mother, it is untested in Virginia (as far as this author is aware) as to whether a court would enter a Parentage Order ordering that she is a second legal parent who should be listed on the birth certificate as a second parent. In legal theory, this should be possible. However, whether a court would enter such an order remains to be seen. Moreover, whether a court has the authority to then order the Virginia Department of Vital Records to place the second mom on the birth certificate is not established.

The genetic mother needs to be very clear in any agreements with the fertility clinic that she does not intend to be a donor (which arguably would preclude her from having any parental rights) but that she intends via her contribution to be a parent. Most fertility clinic documents need to be revised for these situations.

In addition, as between the partners, the gestational and genetic moms should enter into a Parenting and Non-Donor Agreement so that the intent to jointly and equally parent is abundantly clear. Of course, this is truly an untested area of the law in Virginia with no guarantee that the agreement would be upheld as enforceable by a court in Virginia. Nonetheless, the intent of the parties should be formalized.

If a Parentage Order cannot be obtained listing both the genetic mom and the gestational mom as the legal parents, the couple should still have a Joint Custody Order entered (although it would not give the partner who contributed her egg standing as a legal parent but only standing as a joint custodian). Again, the same-sex couple should have reciprocal wills drafted naming the other as the child’s trustee and guardian. Reciprocal durable powers of attorney and advanced medical directives also should be executed. If the same-sex couple subsequently moves to another state that permits second parent adoptions, then they can do a second parent adoption and ensure that the non-carrying partner is made a parent via court order.

If at all possible, a same-sex female couple will be at a great advantage if they can arrange to deliver the child in Washington D.C. and take advantage of the District of Columbia’s Parentage Act. In such event, as long as the partner signs a form that she consented to the insemination by the pregnant partner, then both can be placed on the birth certificate. Note that this is not the same as a court order giving both parents equal rights; however, it is better than giving birth in Virginia where only the carrying mom, with any certainty, gets placed on the birth certificate.

(4) Same-Sex Female Couple Who Use a Surrogate or Gestational Carrier.

Because usually one of the two same-sex female partners is capable of carrying a child, it is a very rare situation whereby they would need to use a third party carrier. However, such situations sometimes do arise. In such event, if one of the partners is donating her egg, then the situation should be treated the same as where a single woman uses a gestational carrier as discussed above in Part A(3). In such event an Order of Parentage can then be obtained to put the genetic parent on the birth certificate and take the gestational carrier off the birth certificate. Then, as previously discussed, the same-sex couple should seek to obtain a Joint Custody Order, have reciprocal wills drafted (that address guardianship of the child and establish a trust for the child), and have reciprocal durable powers of attorney and advanced medical directives executed. If the same-sex couple subsequently moves to another state that permits second parent adoption or that recognizes both genetic and gestational same-sex parents, then they can do a second parent adoption and get the genetic partner on the birth certificate (note that the Virginia Supreme Court held in Davenport v. Little-Bowser, 269 Va. 546, 611 S.E.2d 366 (2005) that adoption orders for same-sex couples from other states must be honored by the Virginia Department of Vital Records).

If a third party carrier is used who contributes her own egg (a “true surrogate”) using donor sperm or carries with donor egg and donor sperm (or a donated embryo), then a single parent adoption will have to take place. As discussed previously in Part (A)(4) for single intended moms, this is a very risky arrangement. After the adoption, then the same same-sex protocol outlined above (joint custody order, reciprocal wills, etc.) should be followed.

C. Adoption Options for Same-Sex Couples in Virginia

Because adoption in Virginia by statute must be by a married couple (defined in the Virginia Constitution as between a man and a woman) or by a single person, it currently is not established in Virginia that same-sex partners could both adopt the same child. However, other states have recognized second parent adoptions where one single parent adopts and then the second single parent adopts the same child. Theoretically it should be possible for either both single parents to adopt simultaneously the same child or, as in other states, for one single parent to adopt and then the other single parent to do a second parent adoption as to the same child. However, this author is not aware of either approach having been accomplished yet in a Virginia court.

It is possible, depending on the current state of Virginia ICPC (Interstate Compact on the Placement of Children) office approval, for same-sex couples to adopt together in another state that recognizes same-sex placements and return to Virginia with the child. However, if this option is pursued, it is important to be in constant consultation with a Virginia adoption attorney that is abreast of the most recent Virginia ICPC office policy to ensure that there will be no hitches in getting interstate approval to bring the child home from the other state. Moreover, separate home studies may need to be done on each partner.

Moreover, it is usually possible for same-sex couples in other states to adopt a child from Virginia provided that same-sex adoptions are permissible in their home state. Again, an experienced adoption attorney in Virginia should be consulted to ensure that there will not be any hitches with obtaining Virginia ICPC (interstate) approval.

It is feasible and common for one partner to adopt as a single adoptive parent in Virginia (see part A(2)). For purposes of home study approval, typically one partner of the same-sex couple will be the one to adopt the child, with the other partner listed as a “roommate.” However, some agencies have been more forthcoming in their home studies of the exact nature of the relationship between the parties, and more judges have been accepting of such open disclosure.

If the couple resides in Virginia, the best option for the non-adopting partner then is to obtain a Joint Custody Order. Unfortunately, as previously discussed, such an order will not make the non-adopting partner a legal parent but at least will give that parent joint custodian rights. The couple should have reciprocal wills drafted with guardianship of the child designated to the other parent and with a trust set up for the child. Reciprocal durable powers of attorney and advanced medical directives also should be executed. If the same-sex couple subsequently moves to another state that permits second parent adoptions, then they can do a second parent adoption and get the genetic partner on the birth certificate (note that the Virginia Supreme Court held in Davenport v. Little-Bowser, 269 Va. 546, 611 S.E.2d 366 (2005) that adoption orders for same-sex couples from other states must be honored by the Virginia Department of Vital Records).

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